DISSENTING OPINION OF JUDGE bONELLO JOINED BY JUDGES Strážnická AND tsatsa-nikolovska

1. The applicant was deprived of his liberty, in the course of criminal investigations, for 48 days. At the end of his trial he was acquitted on the ground that the facts attributed to him had not occurred. He sought redress in accordance with Article 5 § 5, as no right to compensation exists in the circumstances in the domestic system.

2. The Court has repeatedly held that for detention to be lawful in terms of the Convention, it must firstly be in accordance with domestic law. For a precautionary measure such as pre-trial detention to conform with Italian law, it has to satisfy at least two conditions. There must exist serious indications of guilt, together with a genuine risk that the suspect will, if not kept in a state of detention, commit further offences. The judge is under an obligation to state the specific reasons which induce him to fear that the suspect would re-offend. [1] Any breach of any of these conditions would render the detention unlawful.

3. In the present case the only reason given by the Brindisi District court on 13 December 1993 when extending the applicant’s pre-trial detention, was the following: “there undoubtedly was a danger of his (the applicant’s) committing further crimes… considering how the accused succeeded in unlawfully attaining the economic ends identified”. In other words: there is a danger that the accused will re-offend, as he has already committed the criminal acts with which he is charged.

4. I fully endorse the Court’s case law that the mere fact that a person was finally acquitted of the offence charged, does not automatically render his pre-trial deprivation of liberty unlawful. [1] Detention pending judgement would, on the other hand, be unlawful if it violated the requirements of national law, or of the Convention.

5. The majority found lawful the further detention of the applicant, ordered by the Brindisi court, and did not distance itself from that court’s conclusions that there was a danger of the applicant committing further crimes, considering that he had already succeeded in committing previous crimes. With this finding I disagree.

6. Firstly, for a detention to be lawful according to Italian law, the court is under an obligation to give, in detail, the reasons which induced it to conclude that there existed a danger of re-offending. The Brindisi court

failed majestically in this obligation. This, alone, would render the detention illegitimate.

7. Secondly, Italian case law stresses that the existence of a real possibility of re-offending is “alien to purely conjectural arguments”. [2] As it is, the Brindisi court tied its persuasion that the applicant could re-offend, to the persuasion that he had already offended before. This was not pure conjecture. It was a mistaken, improper and false conjecture based on a false, improper, and mistaken premise. The Brindisi court relied exclusively on guesswork, and guesswork has a disturbing habit of letting you down.

8. Thirdly, in assuming that the applicant could commit other criminal offences, the Brindisi court banked on what is, in essence, a violation of the presumption of innocence. That court assumed that the applicant was guilty, and proceeded to pull the presumption of innocence inside out. Basing itself on a mischievous abuse of an illegitimate ‘presumption of guilt’ it concluded that, once guilty, always guilty. The majority has, in substance, found no reasons to disassociate itself from this bizarre damage to the presumption of innocence.

9. Fourthly, Italian case law underlines that relevant considerations to be taken into account when determining the risks of re-offending are the accused’s personality, including his behaviour prior to being charged, and his conduct after the facts with which he stands charged. The accused applicant had never been convicted of a single offence, nor had he any other criminal charges pending, nor was there any allegation that he had ‘re-offended’ after that facts with which he stood charged. These considerations, sensibly deemed determining by the Italian legal system, were exemplarily disregarded by the Brindisi court.

10. That court only identified the applicant’s previous (inexistent) crimes as the basis of the risk of committing further crimes. The majority has not found it offensive to legal logic to accept that there existed reasonable fears of ‘re-offending’ when there had never been any ‘offending’ at all in the first place. That is where, sadly, we go separate ways.

11. The Convention confers on the Court the power (and the duty) to review whether domestic law has been complied with in matters of deprivation of liberty. [3] It is a power which, to my way of seeing, the Court has used rather economically in the present case.

12. The applicant – innocence certified by court – was dispossesed of his liberty for 48 days. It is a matter of regret that Italian law does not grant him any hope of redress. It is a matter of greater regret that neither did a court of human rights.

[1] Article 292 of the Italian Code of Criminal Procedure.

[1] See Benham v. United Kingdom, 10 June 1996, Vol 3, p. 753, § 42; Kouloumpas v. Greece, 29 May 1997, Vol. 3, p. 924, § 58.

[2] See § 36

[3] See § 42